This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Purchaser's costs of appearing on application for distribution of purchase -money.
If the money has been invested on his application, he must, if the purchase is rescinded, take the stock, notwithstanding any variation in the funds (e) ; but when, in a foreclosure action, the estate is sold by consent, and the purchase-money invested in Consols, pending an inquiry as to the amount due on the security, the mortgagee is not prejudiced by a fall in Consols; and, if the ultimate proceeds are insufficient, may claim the deficiency in an administration action (/).
Purchase-money invested, and contract rescinded.
Where the conditions of sale are silent as to the time when he is to have possession, and as to interest upon the purchase-money, the rule of the Court is, that he shall be let into possession from the quarter-day preceding the time when the Master's certificate of his being the purchaser becomes absolute, he paying his purchase-money into Court before the following quarter-day (g) : and although he may not pay his purchase-money into Court until the quarter is nearly expired, yet he will not be liable to pay interest, unless the estate be a reversion, or a life annuity payable quarterly; in which case interest is payable from the date of the purchase (//). If he delay payment, he will take the rent only from the quarter-day preceding payment (i) : nor will he be allowed the rents from an earlier day on the ground of his money having lain idle (k). Where, as in the case of a colliery, the profits are ascertained monthly or weekly, he will be entitled to them from the commencement of the month or week (as the case may be) in which he pays his money (/), and the same principle would, it is conceived, prevail where, as often happens with house property, the rents are paid at shorter intervals than a quarter; while, on the other hand, if rents are reserved half-yearly, the purchaser would seem, on principle, to be entitled to them from the commencement of the current half, instead of quarter, year; and this has been so decided (m) ; on the purchase of a manor, fines on descent are, for the purpose of the above rules, considered to accrue due on the death of the copyholder, and not on the admission of his heir or devisee (n). Where the conditions provide that the purchaser shall pay interest, and shall be entitled to the rents and profits, from the day fixed for completion, and an order is subsequently made for payment in of the purchase-money and interest, the purchaser will not be allowed to deduct the amount of rents and profits (o).
Possession- from what time purchaser entitled to.
(a) See Toddy. Studhohne, (1857) 3 K. & J. 324, 338, 339; 26 L. J. Ch. 271.
(b) Bamford v. Watts, (1840) 2 Beav. 201.
(c) Barton v. Latour, (1854) 18 Beav. 526.
(d) Strong v. S., (1858) 4 Jur. N. S. 943; Noble v. Stow, (1861) 30 Beav. 272.
(e) Hodder v. Muffin, cited Sug. 14th ed. 119.
(f) Tompsett v. Wickens, (1855) 3 Sm. &Gr. 171.
(g) See Twigg v. Fifield, (1807) 13 Ves. at p. 518; Gowan v. Tighe, (1835) L. & G. t. PI. 168, 170.
(h) Trefusis v. Lord Clinton, (1828) 2 Si. 359.
(i) Sug. 14th ed. 104.
(k) Ib.; Barker v. Harper, (1806) G. Coop. 32; Hindle v. Dakins, (1838) 1 Coop. t. Cott. 378. As to the case of a mortgagee, see Bates v. Bonnor, (1835) 7 Si. 427.
(/) Wren v. Kirlon, (1803) 8 Ves. 502; Williams v.Attenborough, (1823) T. & R. at p. 73.
(m) Hughes v. Wells, (1854) V.-C. Wood, cited 1 Dav. 603.
(n) Garrick v. Lord Camden, (1790) 2 Cox, 231 ; the marginal note is incorrect. It will be seen from the case that the admissions were after and not before the time fixed for completion : see Earl Hardwicke v. Lord Sandys, (1844) 12 M. & W. 761 ; 13 L. J. Ex. 233; Cuddon v. Tile, (1858) 1 Gif. 395.
(o) Day v. Bonaini, (1886) 55 L. T. 329.
Where an offer was made, out of Court, to purchase a deteriorating property (leaseholds), and the Court, upon the Master reporting in favour of the sale, accepted the offer, the purchaser was held entitled to the rents from the date of the order of reference (p).
The remarks made in the earlier part of the hook as to the abstract, searches for incumbrances, and matters arising between its delivery and the preparation of the conveyance, are generally as applicable to sales by the Court as to ordinary sales.
The conveyance, if an infant was a necessary conveying party (q), or if, though he was not a party, the conveyance would by statute have had the effect of divesting his estate (r), was, as a general rule, formerly settled by the judge at chambers ; but this practice is not now observed. It is, however, still generally required, where the estate is sold under the provisions of the S. E. Act, 1877 (s). Subject to this exception, it is usual to direct only that the draft be settled by the judge "in case the parties differ"(t); and when the order is so worded, a purchaser going before the judge pays his own costs, unless he can make out special grounds for exemption (u) ; and by the R. S. C. 1883 (x), all proper parties must join in the conveyance as the judge shall direct. Where the estate belongs to an infant, the order for conveyance should be distinct from and should recite the order for payment of the purchase-money into Court (y). The order of the judge as to the form of conveyance is subject to review (s). Thus, where a condition of sale provided that the form of a covenant should be settled by the judge, in case of dispute, it was held by the Court of Appeal that the form settled by the judge was not in accordance with the terms of the contract as expressed in the conditions (a).
Conveyance- when settled in chambers.
(p) Cheetham v. Sturtevant, (1849) 3 De G. & S. 468.
(q) Calvert v. Godfrey, (1840) 2 Beav. 267.
(r) Cheese v. C, (1845) 15 L. J. Ch. 28 ; aliter, if the infant be only interested in the proceeds of sale, Richardson v. Ward, (1848) 11 Beav. 378; the consequent costs must be borne by the funds in Court: Brown v. Lake, (1845) 15 L. J. Ch. 34.